JUDGMENT Naheed Ara Moonis, J. The instant appeal is arising out of judgment and order dated 21.8.1982 passed by the IV Additional Sessions Judge, Fatehpur in S.T. No. 333 of 1980 whereby convicting the appellants under Section 333 I.P.C. for six years rigorous imprisonment. Further convicting the appellant no.1 Deo Nath under Section 394 I.P.C. with rigorous imprisonment of three years. All the sentences were directed to run concurrently. During the pendency of appeal the appellant no.1 Deo Nath died and as such the appeal stood abated against him by order dated 5.11.2012. 2. Heard Sri Harsh Kumar Srivastava, learned counsel appearing on behalf of the surviving appellants, namely, Deo Raj and Udai Bhan and Sri R.D. Yadav, the learned A.G.A. on behalf of the State and perused the record. 3. The prosecution case in short conspectus is that the first information report was lodged by Constable Ram Abhilash (P.W. 8) that when he along with Constable Rajbali (P.W. 3) were returning after patrolling on 11.9.1977, as they had visited the villages Bara, Malukbari and Kachhra in search of one accused Swayamber but he was not traceable and reached near the 'Nala' lode at about 6 P.M. in the village Bhavnapur, he (the complainant) had alighted from cycle for urination but the Constable Rajbali proceeded and reached at the lode on his bicycle the accused persons, namely Deo Nath (since deceased) Dev Raj both sons of Beni Kevat, Jhallar (who died during trial) who is also son of Beni Kevat and one Udai Bhan son of Deo Nath having lathi with iron ring affixed at its end appeared and the accusedppellants Deo Nath (since deceased) exhorted the other accused persons to kill Rajbali Singh as he had got arrested him in a case under Section 25 Arms Act and was sent to jail. The accused Jhallar firstly assaulted with his lathi to Rajbali Singh who after having sustained injury fell near the Mahua tree. On this the complainant cried for help and on his scream Shiv Bali (P.W.1), Ramdeo and Bhola (P.W. 2) arrived there from nearby field and had witnessed the incident. Ram Abhilash (P.W. 8) was threatened that he will meet the same fate. The accused persons had also tried to beat the complainant when he reached to save his companion Constable Rajbali Singh. Ram Abhilash (P.W. 8) was threatened that he will meet the same fate. The accused persons had also tried to beat the complainant when he reached to save his companion Constable Rajbali Singh. Thereafter while escaping from the spot Deo Nath (since deceased) had snatched the wrist watch of Rajbali Singh. It is further mentioned in the first information report that as Rajbali Singh had sustained injury over his head and left leg was fractured, hence he was taken on a cot to the house of Jagannath Kevat who is father of the eye witness Bhola (P. W. 2). There from he was taken on a cot to the Primary Health Centre Vijaypur. He was medically examined at 2 A.M. on 13.9.1977 thereafter he was referred to District Hospital Fatehpur. Dr. V.P. Singh (P.W. 4) examined the injuries of Constable Rajbali Singh, which are as follows; I. Lacerated wound 6.5 xm x 0.5 cm. X skin deep on the top of the head on right side, 14 cm. above the right ear tregus. Bleeds on touch. II. Contusion 8 cm x 8 cm. on the outer side of the right upper arm 10 cm. above the elbow. Red. III. Contusion 5 cm x 3 cm on the left side of back of side of posterior superior illiac spine. Red. IV. Incised wound 1.5 cm x 0.3 cm x muscle deep on the outer side of left leg 2 cm above the left lateral maleolus. Margin clean cut and sharp. Bleeds on touch. V. Contused defuse swelling on the dorsum of left feet extending from the ankle down upto the tees. Red. VI. Incised wound 2 cm x 0.3 cm x muscle deep on the inner side of left feet 9 cm. in front of left medial maleoulus. Margins clean cut sharp and bleeds on touch. VII. Incised wound 2.5 cm x .3 cm. X muscle deep on the inner side of left great toe foot 3 cm. in front of injury no. 6. Margins clean cut sharp. Bleeds on touch. VIII. Incised wound 2 cm x 0.3 cm. X muscle deep on the inner side of second toe of left foot. Margins clean cut sharp. Bleeds on touch. IX. Incised wound 2 cm x 1 cm. X muscle deep on the inner side of second toe of left foot. Margins clean cut sharp. Bleeds on touch. Bleeds on touch. VIII. Incised wound 2 cm x 0.3 cm. X muscle deep on the inner side of second toe of left foot. Margins clean cut sharp. Bleeds on touch. IX. Incised wound 2 cm x 1 cm. X muscle deep on the inner side of second toe of left foot. Margins clean cut sharp. Bleeds on touch. X. Lacerated wound 2 cm x 0.5 cm. X muscle deep in between the finger gap of III and IV toe left foot. Bleeds on touch. XI. Lacerated wound 1.5 cm x 0.3 cm. X muscle deep on the planter aspect of III toe of left foot. Bleeds on touch. XII. Contusion 9 x 7 cm. on the right side back 24 cm. below the right shoulder. Red. XIII. Contusion 4 cm x 4 cm. on the back of left hand. Red. 4. The injures were found to have been caused by some blunt object except injury nos. 4, 6 and 9, which were caused by sharp edged weapons. The duration of the injures were found fresh except injury nos. 1 and 5. All the injures were simple in nature and in respect of injury nos. 1 and 5 he was advised for X-ray and it was opined that the injuries could have been caused at about 6 P.M. on 12.9.1977. The written report of the incident was lodged by Constable Ram Abhilash against the accused persons, which was registered as case Crime No. 118 of 1977, under Sections 333/325/394 I.P.C. at police station Kishanpur, district Fatehpur. The same was lodged at about 5.30 A.M. After registration of the first information report the criminal law was set in motion. Sri Ram Kumar Verma (P.W. 9) was entrusted with the investigation who investigated the case and submitted the charge sheet against all the accused persons. Since the accused Jhallar had died at the stage of committal hence the case was abated against him. The charges were framed against the appellants, namely, Deo Nath (since deceased), Dev Raj and Uhai Bhan by order dated 9.4.1981 by the IV Additional District & Sessions Judge, Fatehpur. All the accused persons abjured the charges and claimed to be tried. 5. The charges were framed against the appellants, namely, Deo Nath (since deceased), Dev Raj and Uhai Bhan by order dated 9.4.1981 by the IV Additional District & Sessions Judge, Fatehpur. All the accused persons abjured the charges and claimed to be tried. 5. In order to substantiate the charges against the appellants the prosecution has examined Shiv Bali and Bhola as P.W. 1 and P.W. 2 Constable Rajbali Singh as P.W. 3 an injured witness and the first informant constable Ram Abhilash as P.W. 8. The formal witnesses were examined by the prosecution Dr. V.P. Singh P.W.4 who had examined the injured. Harsh Chand Gupta, X-ray Technician as P. W. 5, Dr. B.R. Vajpayee Medical Officer who had conducted X-ray of the injured as P.W. 6, Radhey Shyam Head Moharrir who had prepared the chick report as P. W. 7 and Ram Kumar Verma, S.I. the Investigating officer as P.W. 9. 6. The statements of the accusedppellants were recorded under Section 313 Cr.P.C. They deposed to have been falsely implicated due to enmity with the police. The appellant Deo Nath (since deceased) had admitted that on 25.8.1977 he was arrested under Section 25 Arms Act and was challaned by Head Constable Manaklika and was not arrested by Contable Rajbali Singh. He further submitted that his brother Jhallar was murdered by the witness Bhola and others and in that case the accused Bhola was awarded life imprisonment. Due to this enmity the witness Bhola had deposed against them. Similar was the statement of Dev Raj and Udai Bhan. Udai Raj further stated that he has been falsely implicated as he was not present on the day of the alleged incident. He was studying in Class VIII at Kishunpur and was living there. During trial the prosecution witness P.W. 1 and P.W. 2 Shiv Bali and Bhola did not support the prosecution case and were declared hostile. 7. Considering the entire evidence on record the learned trial judge found that the prosecution has proved the case beyond all reasonable doubt against all the appellants under Section 333 I.P.C. sentencing them to six years rigorous imprisonment. The appellant Deo Nath was further convicted under Section 394 I.P.C. as he had robbed Constable Rajbali Singh by snatching his wrist watch while escaping from the spot after brutally assaulting him. 8. The appellant Deo Nath was further convicted under Section 394 I.P.C. as he had robbed Constable Rajbali Singh by snatching his wrist watch while escaping from the spot after brutally assaulting him. 8. Learned counsel appearing on behalf of the surviving appellant has contended that Ram Abhilash Constable lodged the first information report against the appellants at the behest of Bhola (P.W. 2) who was involved in committing murder of his brother Jhallar and was sentenced to life imprisonment and on account of this enmity the first information report has been lodged against them. There is inordinate delay in lodging the first information report. The alleged incident is said to have taken place at about 6 P.M. when the injured Rajbali Singh along with the complainant were returning after patrolling whereas the first information report has been lodged at about 5.30 A.M. in the morning. It is highly improbable that the appellants according to the own prosecution case were hidden near the lode from where they emerged as soon as the complainant and injured reached there. It is a mysterious circumstance that the appellants were knowing about that both the Constables will pass through the said road at the said point of time. It is also alleged that all the appellants who were armed with lathi having iron ring at the end with which they had assaulted the injured Constable Rajbali Singh but the Doctor had found incised wound, which cannot be caused with the rounded iron affixed with the lathi. At the time of medical examination the first information report was not in existence. The medical report shows that he was brought by Ram Kumar Verma S.I. who is the Investigating Officer (P.W. 9) of the present case yet the first information report was lodged after much lapse of time by Ram Abhilash. The medical report shows that all the injuries were simple in nature. According to the first information report the first assault was made by accused Jhallar who died at the stage of committal of the case. The fatal injury is said to have caused by him, which was received by Constable Rajbali Singh on his head. The other fatal injury according to the medical report is injury No.5, which is said to have been found on the left leg and according to the first information report his left leg was broken on account of the assault. The fatal injury is said to have caused by him, which was received by Constable Rajbali Singh on his head. The other fatal injury according to the medical report is injury No.5, which is said to have been found on the left leg and according to the first information report his left leg was broken on account of the assault. In respect of other injuries the first information report is absolutely silent. General role has been mentioned that he was assaulted with lathi at the instigation of Deo Nath. There is great discrepancy in the statement of prosecution witnesses. The two independent witnesses Shivbali (P.W. 1) and Bhola (P.W.2) did not support the prosecution case during trial and have turned hostile creating doubt about the genesis of occurrence and manner of assault. 9. Lastly, it has been submitted by the learned counsel for the appellants that the surviving appellants are entitled to the benefit of first offender and may be acquitted on the ground of good conduct. Sufficient time has been elapsed from the date of incident. Both the surviving appellants who are on bail they have never misused the liberty of bail, the surviving appellant no.2 Deo Raj is now about 80 years who is not able to move while Udai Bhan is aged about 60 years, hence some lenient view be taken and the appellants be acquitted of the charge. The appeal deserves to be allowed. 10. Per contra the learned A.G.A. has contended that there is no illegality or perversity in the judgment and order passed by the court below convicting the appellants for the ghastly assault perpetrated upon a public servant. All the appellants are related to each other. Out of surviving appellant Deo Raj is brother of Deo Nath (deceased) and Udai Bhan is the son of Deo Nath and hence they shared common intention as the appellant Deo Nath was arrested by injured Constable Rajbali Singh in case under Section 25 Arms Act and hence they were bearing grudge to eliminate him or to teach him a lesson. All the appellants have been specifically named in the first information report and at the instigation of Deo Nath. Jhallar who died during trial had firstly given the lathi blow, which fell on the head of the injured. That injury was on the vital part. All the appellants have been specifically named in the first information report and at the instigation of Deo Nath. Jhallar who died during trial had firstly given the lathi blow, which fell on the head of the injured. That injury was on the vital part. The prosecution has proved the X-ray conducted by P.W. 5 and 6and left leg was found fractured. The Doctor P.W. 4 who had medically examined the injured had also deposed that if some sharp iron ring is affixed at the end of the lathi then the injury nos. 4, 6 and 9, which have been shown as incised wound could have been inflicted by the strike of such lathi blow. The injured had sustained 13 injuries on his person. The medical report has been fully corroborated by the first information report as lodged by the Constable Ram Abhilash. The Investigating Officer had also found blood stains from the spot, which was collected and a recovery memo was prepared in the presence of Jagannath and Shiv Bali. Jagannath who is father of Bhola (P.W. 2) is said to have been involved in the case of murder of Jhallar and Shiv Bali ( P.W. 1) who is another eye witness named in the first information report. The Investigating Officer also collected broken cycle and umbrella of the injured. The recovery memo which was prepared was handed over to the complainant constable Ram Abhilash. This recovery memo was also prepared in the presence of Shiv Bali (P.W.1), Bhola (P.W.2), Jagannath and the complainant and as such it cannot be said that merely because two witnesses P.W.1 and P.W. 2 have turned hostile and have not supported the prosecution case during trial will demolish the entire prosecution case. P.W. 1 and P.W. 2 could have been turned hostile on account of pressure of the appellants. The fact remains that the injured witness and the complainant who was put to lengthy cross examination by the defense but nothing could be elicited that the appellants have been falsely implicated by them. There is active participation of both the surviving appellants in the commission of offense along with his brother Deo Nath who is not surviving. The learned trial judge has rightly convicted all the appellants looking into the nature of injuries sustained by the injured. There is active participation of both the surviving appellants in the commission of offense along with his brother Deo Nath who is not surviving. The learned trial judge has rightly convicted all the appellants looking into the nature of injuries sustained by the injured. The age of the surviving appellants, namely, Deo Raj and Udai Bhan according to their statement under Section 313 Cr.P.C. are now aged about 62 years and 55 years respectively, therefore, merely on account of lapse of time they do not deserve any leniency. The appeal is liable to be dismissed. 11. Having considered the submissions advanced by the learned counsel for the parties and taking into account the entire evidence on record it cannot be said that the incident had not occurred in the manner as stated by the injured witness as well as by the complainant who are the public servant. The accused Deonath was arrested on 25.8.1977 in a case under Section 25 Arms Act for the recovery of Bhalla by constable Manakalika and the injured constable Rajbali Singh. Thereafter the present incident took place on 12.9.1977 there was no such incident during this period to implicate the appellants and it is quite possible that on account of arrest of Deonath by the aforesaid two constables including the injured Rajbali the appellants have taken revenge. The surviving accusedppellant Udai Bhan is the son and Deoraj is the brother of the appellant Deonath (since deceased) and as such their participation to avenge the arrest of Dinanath was natural. The evidence of the prosecution witness cannot be doubted. So far as the participation of the surviving appellants are concerned all of a sudden they appeared having lathi with iron ring affixed at the end of the lathi and started assaulting the injured Constable Rajbali Singh, which is fully corroborated by the medical report. The Doctor has found as many as 13 injuries on the person of Constable Rajbali Singh. Injury Nos. 1 and 6 were kept under observation, as injury no. 1 was on the vital part on the head. In X-ray no fracture was found in left leg but the fact remains that the testimony of injured witness cannot be disbelieved. Rather his testimony has to be rated high as he would not implicate an innocent person leaving behind the actual culprit. 1 was on the vital part on the head. In X-ray no fracture was found in left leg but the fact remains that the testimony of injured witness cannot be disbelieved. Rather his testimony has to be rated high as he would not implicate an innocent person leaving behind the actual culprit. There is nothing on record to suggest that Rajbali had sustained injuries elsewhere and has implicated the appellants falsely. Even though in the first information report it has not been specifically stated that the surviving appellants had also assaulted him but it cannot be said that they were not involved as it is well said that they also serve, who only stand and wait. The accusedppellant Udaibhan failed to prove by any cogent evidence that he was not present on the date and time of incident and was residing at Kishunpur for his studies. Minor discrepancy in the statements of the prosecution witnesses will not topple down the entire prosecution case. The learned trial judge has dealt with all the statements of the witnesses on the anvil of the defense raised before them and the learned trial judge has tested all the probabilities and as such the judgment and order dated 21.8.1982 passed by the IV Additional District & Sessions Judge, Fatehpur does not suffer from any illegality or factual infirmity and there is no valid reason to take a different view. 12. After carefully analyzing the evidence on record this court is coming to the aspect of the second limb of the arguments advanced by the learned counsel for the appellants that now more than 35 years have elapsed since the appeal is pending and from the date of incident 38 years have elapsed and hence some leniency be shown to the surviving appellants who have never misused the liberty of bail and have no criminal history. No doubt the incident had occurred 37 years back and this appeal is pending since last 34 years, there is a long interval between the date of incident and the date of disposal of the instant appeal. The appellant no. 2 is now aged about 62 years and the appellant no. No doubt the incident had occurred 37 years back and this appeal is pending since last 34 years, there is a long interval between the date of incident and the date of disposal of the instant appeal. The appellant no. 2 is now aged about 62 years and the appellant no. 3 is now 55 years no useful purpose would be served to send them behind the bar after more than three decades, but the gravity of offence is that the appellants had assaulted a public servant Constable Rajbali Singh who had discharged his duty as a public servant for arresting the accused appellant Deonath in case under Section 25 Arms Act. Both the surviving appellants Deo Raj who is the brother and Udai Bhan who is the son of deceased appellant Deonath were revengeful and participated in the commission of offence which was quite natural and probable. This court considers it appropriate to uphold the conviction and quantify the period of sentence of six years awarded by the trial court into fine of Rs. 75,000/- each to be paid to the injured for the injuries sustained by him. The money would not be a substitute for a crime committed against the society but it would be a deterrent not only to offenders but to the individual at large so that such crime may not be repeated again. 13. Accordingly, the appeal is partly allowed. The appellants Deo Raj and Udai Bhan who are on bail need not to surrender as the sentence is hereby quantified into fine of Rs. 75,000/- upon each of the appellant which shall be deposited by them within two months from today. The amount of fine so deposited shall be handed over to the injured Constable Rajbali Singh or his successor by noticing him as compensation. In the event of default of depositing fine within the stipulated period the appellants shall serve out the sentence under challenge. The office is directed to transmit the lower court record for necessary compliance. Judgment be certified and be consigned to the record.